Employee's Written Statement are Not Always Protected by the Corporate Attorney-Client Privilege or Work Product Doctrine

September 16, 2019 |

When can in-house counsel shield employee statements with corporate attorney-client privilege after Nemours II?  The answer is simple and intuitive—when the statements are made “in the rendition of legal services.”  If the answer is so simple, why did I write an article on it?  As the practice of law frequently reminds us, there are several ways to construe simple things. 

The Fifth District Court of Appeal (“the Court”) in Nemours Foundation v. Arroyo, 2019 WL 4122102 (2019), recently addressed the meaning of “in the rendition of legal services” as it applies to corporate counsel’s attempts to shield employee statements with attorney-client privilege.

As iterated by the Florida Supreme Court, the attorney-client privilege “protects only those disclosures necessary to obtain informed legal advice.” Genovese v. Provident Life & Accident Ins. Co., 74 So. 3d 1064, 1067 (Fla. 2011). While this privilege applies to corporations to promote full and frank conversations between corporations and their counsel, claims of privilege in the corporate context are subjected to a heightened level of scrutiny.  S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1383 (Fla. 1994).

 In Nemours II, parents of an injured child sued Nemours Children’s Hospital (“Nemours”) alleging medical negligence after they claimed their child was injured during a procedure.  After the procedure, four out of five hospital employees wrote statements on blank pieces of paper that were undated and unsigned, and submitted them to Nemours’ in-house counsel.  These four statements stated they were prepared “in anticipation of litigation.” The fifth employee submitted a statement on a blank piece paper signed and dated, but a year after the alleged incident and did not contain anything stating it was prepared “in anticipation of litigation.” Each statement bore a comment that it was prepared “in anticipation of litigation.”

During discovery, counsel for the parents and child submitted a request for production that captured the written statements of the five Nemours employees.  Counsel for Nemours objected on grounds the statements were prepared “in anticipation of litigation” and were protected under the attorney-client privilege.

The trial court judge in the Circuit Court for Orange County, Florida, disagreed and, after in camera review, ordered the statements be produced after finding they were not protected by the attorney-client privilege.  The trial court held the statements were not protected by the corporate attorney-client privilege because they were created shortly after the procedure at issue, stated nothing about attorney involvement, did not mention in-house counsel at all, and did not include any legal analysis.  The trial court further held there was nothing contained in any of the five documents in question that indicates a lawyer’s involvement, that was in the furtherance of the rendition of legal services to the client, or that they were in response to an inquiry from in-house counsel.

On Petition for Certiorari Review, the Court considered whether by ordering disclosure of the documents, the trial court departed from the essential requirements of the law and created irreparable harm to Nemours such that it resulted in a miscarriage of justice.  The Fifth District Court found the trial court did not so depart.

There are five factors a corporation must establish to claim the corporate attorney-client privilege.  A corporation must show:

  • The communication would not have been made but for the contemplation of legal services;
  • The employee making the communication did so at the direction of his or her corporate superior;
  • The superior made the request of the employee as part of the corporation’s effort to secure legal advice or services;
  • The content of the communication relates to the legal services being rendered, and the subject matter of the communication is within the scope of the employee’s duties; and
  • The communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.

The Fifth District Court of Appeal agreed with the trial court's rationale and findings and reiterated that the employee statements were more like “fact work product”, which had previously been determined to no longer be protected after the passage of Amendment 7.  Fla. Eye Clinic, P.A. v. Gmach, 14 So. 3d 1044 (Fla. 5thDCA 2009).  There are two types of work product—opinion work work product and fact work product.  For those of you who do not practice in the area of medical malpractice, Amendment 7 was passed by votes in the November 2004 Florida general election.  Amendment 7 provides patients with a right of access to records of adverse medical incident. Amendment 7 is found in Article X, Section 25 of the Florida Constitution.  It is important to understand the nuances of the corporate attorney-client privilege, as it can vary based on the practice area as seen above.  The privileges and what areas are protected in the medical malpractice arena varies from other practice areas.  The attorney’s at Andrews, Crabtree, Knox & Longfellow are well suited to advise our clients of effective means to bring corporate communications within the attorney-client privilege and work product doctrine. 

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